Legal Experts Divided Over Where Rwanda Impasse Leaves UK and European Court

Demonstrators protest against plans to send migrants to Rwanda at a removal centre near the Gatwick Airport near London on June 12, 2022. (Victoria Jones/PA Media)

British experts on constitutional law and the UK’s relationship with Europe are divided on the question of what might happen in the wake of the Rwanda deportations impasse.

The European Court of Human Rights (ECtHR) stepped in at the last minute on Tuesday night with an interim measure that effectively blocked the British government from deporting any asylum seekers to Rwanda.

In April British Home Secretary Priti Patel signed a deal that allowed for asylum seekers who had entered the UK illegally—usually involving crossing the English Channel on a human trafficker’s boat—to be sent to the East African country and held there while their claims were processed.

Several UK charities and pressure groups tried to stymie the policy through legal challenges but their efforts failed.

Home Secretary Priti Patel and Rwandan Foreign Minister Vincent Biruta signed the migration and economic development partnership in Kigali in April. (Flora Thompson/PA)

The Rwanda policy is set to be tested at a full hearing in the UK Supreme Court later this year.

But the question remains—in a post-Brexit world, who ultimately decides what is legal and what is not in Britain?

Parliament? The British judiciary? Or a panel of 47 judges—which includes a British barrister, Tim Eicke, QC—in the French city of Strasbourg?

Frederick Cowell, a senior law lecturer at Birkbeck College in London and a specialist in treaty withdrawal, told The Epoch Times that the High Court had accepted the home secretary’s assurances that those sent to Rwanda would be and could be brought back to the UK if the full hearing ruled against the policy.

But the Strasbourg judges had not accepted those assurances and felt there was a risk of “irreparable harm” being caused to the deportees.

Richard Ekins, a professor of law and constitutional government at Oxford University, and Sir Stephen Laws, a former parliamentary counsel, said in a joint paper for the think tank Policy Exchange: “If the Supreme Court in the end upholds the lawfulness of removal to Rwanda, it is of course entirely conceivable—indeed probable—that the [ECtHR] will make further interim measures restricting removals to Rwanda until the [court] has itself had time to hold a hearing and to make its own decision.”

‘Rwanda Policy May Not Go Ahead For Years’

“What this means is that, if the UK complies and if the [ECtHR]—as it routinely does—takes its time then the government’s Rwanda policy may not go ahead for years. That would effectively end it.”

Asked if the ECtHR would block the Rwanda deportations even if the Supreme Court ruled in the government’s favour in the full hearing, Cowell said: “It depends.”

He said it was “not unimaginable” that the Strasbourg court would stand by and let the planes take off.

“There is a little-known clause that governments in Europe are entitled to seek a memorandum of understanding (MoU) about deportation with countries not bound by the European Convention of Human Rights (ECHR) if they have assurances about the treatment of those deportees. But the MoU has to be ”believable and robust,” he said.

The ECtHR is part of the Council of Europe and its remit is to protect human rights.

Earlier this year it expelled Russia—which had joined in 1996—following the invasion of Ukraine and earlier this week it issued an interim measure calling for a stay on the execution of Aiden Aslin and Shaun Pinner, two British soldiers in the Ukrainian army who were sentenced to death by the Donetsk People’s Republic after being accused of being “mercenaries.”

Britons Aiden Aslin and Shaun Pinner and Moroccan Brahim Saadoun captured by Russian forces during a military conflict in Ukraine, in a courtroom cage in Donetsk on June 8, 2022. (Supreme Court of Donetsk People's Republic/Handout via Reuters TV)

“There were lots of Conservative MPs criticising the ECtHR for its power over the Rwanda deportations but I don’t hear the same criticism in relation to these two men in Ukraine,” Cowell said.

The ECtHR, which was set up in 1959, is the highest human rights court in Europe, and the 46 members of the Council of Europe are bound by its decisions, as is Russia despite its expulsion.

But Simon Murray, in a report for Policy Exchange in March 2021, said the ECtHR had distorted the intended meaning of the convention when it came to immigration and “invented new legal rights that were not agreed by the member states.”

‘Stop Meddling With British Law’

After Tuesday’s Rwanda flight was blocked, Conservative MP Andrea Jenkyns wrote on Twitter: “Yes let’s withdraw from European Court of Human Rights and stop their meddling in British law.”

Another Tory backbencher, Sir Desmond Swayne, told Parliament: “We are going to have to grasp the nettle and extend the principle of ‘taking back control’ to the convention.”

A third MP, Greg Smith, called on the government to speed up the introduction of its Bill of Rights and “remove all power of the European Court of Human Rights over our sovereign decisions.”

Cowell pointed out the foreword to the government’s own consultation document on the Bill of Rights, published in December, states: “The government remains committed to the European Convention on Human Rights—and, indeed, the UK’s tradition of human rights leadership abroad, as demonstrated by the introduction of our Magnitsky global human rights sanctions regime.”

He said: “In order to withdraw from the European Court of Human Rights all you need to do is write a letter to the Court of Europe and withdraw from it ... but democratically and constitutionally it is ‘beyond a nightmare.’”

Cowell said both the Good Friday Agreement in Northern Ireland and Scottish devolution recognised the European Convention of Human Rights and much of the Brexit trade agreement with the E.U. would “automatically collapse” if Britain withdrew from it.

“Because Britain doesn’t have a written constitution the European Convention on Human Rights was a crutch ... and it ticked along quite nicely for a quarter of a century. It’s constitutionally embedded in our system,” said Cowell.